IN THE early 1960s we had, at the Rectory Beechworth, a state-of-the-art reel-to-reel tape recorder. 
My father had brought it from England when we emigrated. It was the size of half a suitcase and weighed a tonne. It recorded only through a microphone.
The thing was used to record amateur drama and other parishional work, but we children also used it to record the Friday night hit parade on 3NE. We could then play back the hits anytime with the ads excised.
It was not very satisfactory. Calls of “Get some more wood for the fire” and dogs barking often overlaid the latest hit.
I am not sure whether it was a breach of copyright. It was certainly before the major 1968 Copyright Act. But it did not matter because tape recording then posed no commercial threat to recording companies. That came only with the emergence of cassette tapes and direct wire recording.
Ever since, the law has always been a few steps behind technology. Photocopiers posed risks to book publishers, and VCRs posed risks to movie houses.
And so again last week, the High Court, in the iiNet case, knocked back a legal move to stop the latest technological threat to copyright holders – torrenting over the internet.
Something has got to be worked out here. We need a better balance between the rights of the movie houses and the public. The copyright holders should get paid for use of their work or they will cease producing it. But the public, which provides the legal and enforcement framework, should get some benefit, too.
Torrenting is like an attack by termites. On the outside, things look normal, but on the inside the whole copyright edifice is being eaten away.
Torrenting works like this: a person connected to the internet, “the downloader”, can download a “torrent” of a movie – not the movie itself – from a torrent website. The torrent is a set of instructions for the downloader’s computer to search for all those personal computers on the net which have that movie on their computer in a folder accessible to torrents.
Usually, there will be several hundred among the millions of computers in the world. The downloader’s computer then downloads bits of the movie from those several hundred other computers and puts the bits together as a coherent movie – hence the term “bit torrenting”.
The torrent site is not breaching copyright because it does not have the movies on its servers. And, in any event, the torrent sites are usually in obscure countries and do not advertise their whereabouts. They get their money through advertising, often for gambling websites and the like.
As soon as a new movie goes on the DVD market, torrents for the movie will appear on the net and there will be a lot of them seeking the new product. This is insidious for the movie houses because it happens at the very time they could expect to make most sales – when the movie is relatively fresh with lots of reviews and media coverage.
Unlike the taping of the 3NE hit parade which took half and hour to copy 20 minutes of music, a 100-minute movie can be downloaded in just10 minutes.
The torrenting technique is spreading widely by word of mouth. It is impossible to stop at the individual level. There are not enough policemen. Besides, non-commercial breaches of copyright are only civil, not criminal, matters.
So this is why 34 movie houses took legal action against an internet service provider – iiNet. They picked on iiNet because, they asserted, it seemed to be one of the most cavalier about illegal copying.
The movie houses asserted iiNet was authorising its customers to breach copyright. They gathered evidence showing that about half the traffic of iiNet’s half a million customers was bit torrenting.
The case began in the Federal Court and worked its way up to the High Court. But the High Court said iiNet had no way of knowing what individual customers were accessing through its servers and so could not be said to be authorising the customers to breach copyright.
No doubt, the movie houses will seek yet more changes to the Copyright Act, and no doubt some ever more nimble technology will be invented to get around them.
The solution must be commercial and technological, not legal. Those solutions have worked, at least partially in the past.
Levies on tapes and public performers (cafes, restaurants, hotels and so on) worked for the music industry in pre-internet days. Sampling of photocopying by government and educational institutions by the Copyright Agency Limited worked for literary works.
But the internet is harder to crack.
The important public interest is in the creators of artistic, literary and musical works getting a fair return for their work. But equally the public should get a return for the grant of the monopoly.
For a start, the copyright period should be cut back. Under pressure from the US, the world copyright regime recently extended copyright from 50 to 70 years from the death of the author or creation of the work if the author cannot be identified.
So just as the 1960s blockbusters were coming out of copyright, the movie houses got a windfall at the public expense.
Further, more of the savings from changes to technology should be passed to consumers. The movie houses still want to change DVD prices for downloaded movies, yet downloads incur no retailing costs and no risk of unused stock. Every download is pure profit.
If the movie houses took the Apple approach they would have less of problem. Apple bought a lot of copyright work and allows legal downloading very cheaply — one song at a time and less than $5 a movie. It has technology that restricts copying to only four devices.
So if you don’t gouge you can make a buck.
You won’t stop illegal torrenting altogether, but many people would prefer fast, legal downloading for a modest price than illegal, free and more cumbersome torrent downloading.
If the movie houses drastically cut their prices and made legal downloading easier they would make money that is now being lost. Moreover, as people move out of torrenting, it will become slower and more difficult because there will be “fewer seeds”.
As it is, the only things the movies houses achieved with its iiNet litigation was to give more publicity to torrenting and to advertise the fact that nobody – not even the higher court in the land – can do anything about it.
CRISPIN HULL
This article first appeared in The Canberra Times on 28 April 2012.